Canadian Union of Public Employees and its Local 2424 v. Carleton University, 1998 CanLII 18245

[1998] OLRB REP. JANUARY/FEBRUARY 17

3040-96-U Canadian Union of Public Employees and its Local 2424, Applicant v. Carleton University, Responding Party

BEFORE: Kevin Whittaker, Vice-Chair.

APPEARANCES: Ainslie Benedict, Marni Jordan, Kelly Lewis, Wayne Thomas and Ian Babcock for the applicant; George Rontiris and Coralie Bartley for the responding party.

DECISION OF THE BOARD; January 29, 1998

I

What this case is about

1. This case is about obligations owed to a bargaining agent where an employer embarks on a restructuring exercise. Increasingly, employers are radically restructuring their enterprises. The reasons behind this trend are varied.

2. Public sector employers are not immune to these general trends. Many are experiencing reductions in government funding levels. For large employers, restructuring plans often include a phase which requires a detailed audit of the way in which work is performed. Depending on the nature of the business, these audits may require fairly elaborate methods of information collection. Not surprisingly, employers often wish to obtain information about work processes directly from the persons who do the work - their employees. These situations raise difficult questions about the role of unions in restructuring processes and the degree to which an employer's attempt to "speak" directly to its employees about work "fits" within a collective bargaining regime.

3. This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act"). The applicant alleges that the respondent has breached sections 70 and 73(1) of the Act. The thrust of the applicant's case is that in collecting information from bargaining unit members for purposes of making decisions concerning restructuring, the respondent has bargained directly with its members and more generally, interfered with the ability of the applicant trade union to act as bargaining agent.

4. This matter was heard on May 7 and 8, 1997 by a panel of the Board consisting of myself, D. A. Patterson and S. C. Laing. At the conclusion of the hearing on May 8, the Board adjourned to consider the parties' submissions and then reconvened to issue an unanimous oral ruling that the application with respect to section 73(1) of the Act was dismissed and the application with respect to section 70 of the Act was allowed. The issue of remedy was reserved.

5. Since the Board's oral ruling on May 8, 1997, Board Member S. C. Laing (as she then was) has been appointed a Vice-Chair of the Board. For this reason she is unable to continue to sit as a member of the panel of the Board in this matter. As a result and pursuant to section 110 (12) of the Act, the reasons which comprise of the balance of this decision are being issued by the Vice-Chair of the panel.

II

The Facts

6. Few if any facts are in dispute. The respondent is a large public university located in Ottawa. The applicant represents approximately 600 employees of the respondent. Bargaining unit members are engaged in administrative support and library services. The majority are full-time employees. The applicant is one of seven locals on the respondent's campus affiliated with the Canadian Union of Public Employees ("CUPE").

7. Like many public and private institutions, the respondent has recently engaged in a restruc­turing exercise designed to improve the way it goes about its business. The stated goals are to reduce costs, improve levels of service and to create a more rewarding work experience. The reasons for this but include funding pressures.

8. The restructuring exercise has a number of discrete parts. The portion which is the subject matter of this application is entitled the Working Group on Administrative Renewal ("WGAR"). WGAR was initiated as its name suggests, to examine and recommend changes to the organizational and operational aspects of the respondent's administrative structures. It was commenced in the fall of 1996 following an earlier review (begun in the spring, and to have reported in the fall of 1996) of academic processes called the Working Group on Renewal.

9. In the early summer of 1996, the respondent appointed a new President, Mr. Richard Van Loon. In August, 1996, Mr. Van Loon decided that it would be appropriate to begin a review process (which would become WGAR), to complement the academic review process. He approached for assistance, Mr. Duncan Watt, Associate Vice-President of Finance and Administration.

10. Mr. Watt was the only witness called by the respondent. He explained that following his initial conversation with Mr. Van Loon in August, he began to prepare draft terms of reference for the new process. Mr. Watt was assisted in this by a group of six other people who would eventually all come to be appointed to the WGAR. Draft terms of reference were presented to Mr. Van Loon in late September. Shortly after, they were approved by the respondent's Senior Planning Committee. Mr. Watt testified that while the group of seven individuals involved in the exercise spent a fair bit of time thinking about the terms of reference, no thought was given to how the review process would be carried out or more particularly, whether the applicant would play a role in the process.

11. The "Mandate" and "Scope "of the review are set out as follows in the terms of reference:

12. Mandate

The Working Group on Administrative Renewal was formed by the President to complement the academic review of the Working Group on Renewal. It will examine and recommend changes to the organizational and Operational aspects of Carleton University's administrative structures where such changes are required to support the recommendations of the Working Group on Renewal or to increase the efficiency and effectiveness of operations.

The principal tasks of the Working Group are:

a) to examine the structure of all administrative operations and students support areas;

b) to make recommendations concerning administrative structures, performance targets, and other matters required to achieve the goals and targets of the Working Group on Renewal; and

c) to make comparisons with administrative structures in other universities.

The Working Group will call for written submissions from all members of the University commu­nity. It will meet with each Resource Planning Committee and with other individuals and groups who make written submissions as the Working Group deems necessary.

2. Scope

The administrative function of all units will be considered in relation to their place in the structure of the University, giving due weight to the educational values of the University. Overall effective­ness will be gauged in the light of the targets and goals arising out of the report of the Working Group on Renewal and through comparisons with other universities. Goals with respect to service, cost recovery and profit will be formulated as applicable. The Working Group will consider opportunities for structural changes where such changes will best assist the University in its implementation of the recommendations of the Working Group on Renewal or where such changes will improve the effectiveness and efficiency of the existing operation. This review is also intended to complement the work of the process redesign teams and to provide guidance as to future areas for process redesign.

12. Ms. Marni Jordan was President of the applicant in the fall of 1996 and one of four witnesses called by the applicant. She stated in her evidence that while there were rumours in the fall of 1996 about the WGAR process, it was not until October 22, 1996 that the applicant was formally advised about the initiative. On that day, at the respondent's behest, the parties met to discuss the project. At the meeting, the respondent presented the applicant with a copy of the terms of reference.

13. One month earlier, the parties had settled a prior Board application. In that matter, the applicant had alleged that an earlier discrete portion of the respondent's broader restructuring exercise had been conducted in a manner which breached the Act. The prior complaint had been made as a result of the applicant's concerns about not being involved in restructuring processes that had preceded the WGAR.

14. Ms. Jordan testified that in the context of the recent settlement and the discussions which eventually resolved that matter, she anticipated that the respondent would invite the applicant to participate in the new WGAR process at the October 22 meeting.

15. At the meeting which took place on October 22, the respondent informed the applicant of its plans. It presented the finalized terms of reference for information purposes, but not as a matter to be negotiated. The respondent explained that it would seek information from employees in three ways: by solicitation of submissions generally, by inviting particular individuals to meet with the committee and by the use of a questionnaire.

16. At the meeting on October 22, the applicant was not provided with a copy of the question­naire or a draft of the call for submissions which would be published in the local university newspaper. Mr. Watt acknowledged in his evidence that at this meeting, the applicant raised concerns about the propriety of the respondent going directly to bargaining unit members with such a questionnaire. The applicant suggested that the questionnaire be distributed and sent through it. Ms. Jordan testified that at the end of the meeting, she believed that the respondent had undertaken to come back with responses to the applicant's concerns before any further steps were taken. Mr. Watt's recollection was different. He did not believe that such an undertaking had been given.

17. The next communication between the parties occurred on October 28, 1996. At that time, Mr. Watt sent a memo to the applicant soliciting its views on an enclosed draft "Call for Proposals". Mr. Watt indicated that he needed the applicant's comments within two days as the draft would be published in the campus newspaper later that week. The applicant advised Mr. Watt that it could not reply within the tight time frame provided. The document was published three days later on October 31, 1996 without the applicant's input.

18. The respondent sent out approximately 100 questionnaires. Most of these were sent to bargaining unit members. This figure represents approximately one-sixth of the applicant's membership. Following the distribution of the questionnaire, the respondent scheduled information sessions for those asked to respond. Information sessions were scheduled for November 4 and 8, 1996.

19. Ms. Jordan testified that when the applicant's members received the questionnaire, a number of them were concerned about the content of some of the questions. The concerns were that the questions touched on matters that might be viewed as collective bargaining issues. Some members felt that these issues should be discussed directly with the applicant rather than with employees through the device of a questionnaire.

20. The applicant requested permission to attend the information session on November 4, 1996. The request was refused. Mr. Watt felt the applicant's participation would be inappropriate despite the fact that he understood that the applicant believed that its members' interests were being affected by the process.

21. At the meetings on November 4 and 8, 1996, Mr. Watt was told by some employees that they were uncomfortable with the process. Their discomfort stemmed from both the subject matter of the meeting and the fact that the applicant was not permitted to participate in the session. In response to a question at the meeting on November 8, 1996, Mr. Watt indicated that while the questionnaire itself was not intended to determine where lay-offs would occur, the recommendations which would result in part from responses to the questionnaire, could result in lay-offs.

22. As a result of being excluded from the information sessions, the applicant convened its own meeting to discuss its position on the process and questionnaire with its members. The meeting was scheduled for November 14, 1996. On November II, 1996, the applicant wrote to members of management indicating that it had been barred from attending information sessions held in the beginning of November, that they were holding their own meeting on November 14, and requesting that the questionnaire not be dealt with until after the November 14 meeting. At the meeting on November 14, 1996, the applicant advised its members that if they wished, they could respond to particular questions on the questionnaire by indicating that those issues be referred to the bargaining agent.

23. The applicant along with the other unions affiliated with CUPE presented the respondent with a joint submission dealing with both the academic and administrative review processes. These were discussed at a meeting on December 11, 1996 attended by the applicant, the respondent and other unions. Through their submission, the applicant and other unions declined to comment on some aspects of the questionnaire on the grounds that the issues raised, touched upon matters which were properly the subject of collective bargaining.

24. The questions which were of concern to the applicant were as follows:

25. What services do you acquire from agencies/suppliers outside the University? Outline the nature of these services and the annual cost of these services. How do you determine the effectiveness of the services that are acquired externally?

26. Are there any institutional impediments that hinder the ability of your unit to provide services? If possible, please provide suggestions for improvement.

27. Are there any specific services that your unit provides that could or should be located in other units?

28. Are there any specific services in other units that should be done or located in your unit?

29. Are there any practices, procedures, policies or organizational structures in the University that you think the Working Group should review.

30. During cross-examination, Mr. Watt conceded that all of these events took place in a context where members of the applicant's bargaining unit had concerns that the review process was part of a larger restructuring exercise that might lead to a loss of positions within the bargaining unit. Mr. Watt also candidly acknowledged that there was a legitimate basis for these concerns as fundamental restructuring on a "macro" level could result in job dislocation and redundancies. Finally, Mr. Watt observed that the respondent was facing severe funding pressures. These pressures could lead to reduced enrolment levels which in turn could result in further restructuring and loss of funding.

31. Mr. Ian Babcock testified on behalf of the applicant. Mr. Babcock is an Administration Officer in the Department of Biology and a member of the applicant's executive. Mr. Babcock was one of the employees to have received the questionnaire. He explained that the questionnaire had been sent directly to him for reply over the signature of Mr. Van Loon. He understood that he could not decline to answer it and that the request was in the nature of a work assignment rather than being voluntary.

32. Mr. Babcock filled in the questionnaire and returned it. Although he understood that he was being directed to complete the questionnaire, he did not feel obliged to provide responsive answers to those questions which he felt touched upon collective bargaining matters. For example, his answers to questions 7, 8, 9 and 10 are as follows:

RESPONSE TO QUESTION NO.7:

I am not aware of any such hindrances.

RESPONSE TO QUESTION NO. 8:

This is a management matter and as such should be referred to union exempt personnel for discussion with the bargaining agent.

RESPONSE TO QUESTION NO. 9:

This is a management matter and as such should be referred to union exempt personnel for discussion with the bargaining agent.

RESPONSE TO QUESTION NO. 10:

None.

III

Positions of the Parties

28. The applicant argues that the respondent's conduct is in breach of both sections 70 and

73(1) of the Act:

70. No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administra­tion of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

71. (1) No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.

72. The applicant's theory concerning the breach of section 70 is that the respondent's conduct precluded it from exercising an appropriate representational role. It was also argued that the way in which this was done, sent a message to bargaining unit members that their bargaining agent was being denied a role in a process which not only addressed collective bargaining issues, but would have significant consequences for job security. To this extent, according to the applicant, the respondent undermined its efficacy in the eyes of its members. This in turn has eroded its ability to properly represent its membership.

73. With respect to the breach of section 73(1), the applicant asserts that the respondent, through the device of a questionnaire, began a discussion with employees concerning issues that are properly the subject of collective bargaining. According to the applicant, this directly breached the provisions of section 73(1), and undermines the applicant's ability to deal with these issues later, should they be addressed through formal bargaining.

74. The respondent's theory is that it was appropriately conducting a legitimate enquiry amongst its employees for purposes of making important long term decisions around restructuring. In the respondent's view, it was acting responsibly by making sure that the information collected by the process truly reflected the views of the people who would be most affected by its outcome - its employees.

The Issues

32. There are two discrete issues raised in this case, one narrow and one broad. The narrow issue is whether the respondent "bargained" with employees directly. The broader issue is whether the respondent "interfered" with the applicant's representation of employees, irrespective of whether it "bargained" with them.

33. Most Canadian jurisprudence recognizes a close relationship between the notions of direct bargaining and interference. Very often these categories are collapsed. It will almost always be the case that where an employer bargains with employees it will also have interfered with representation rights. It is possible to interfere with representation rights in ways which do not involve direct bargaining.

34. In this case, we ruled orally that there was no direct bargaining, but that there was interference with bargaining rights. To explain this result, we will deal with the two issues separately, beginning with the narrower issue of direct bargaining.

Direct Bargaining-Section 73(1)

35. Section 73(1) precludes an employer or anyone acting on their behalf from bargaining directly with employees. It is self-evident that this restriction on employer conduct is essential to preserve a union's role as exclusive bargaining agent. The restriction does not obviously preclude discussions between employer and employee concerning the workplace. An employer must be able to obtain information on a continuing basis from employees about the workplace, how it has, and will in the future, function.

36. In the past, it has been more common for issues of direct bargaining to be raised in circumstances where employers have purported to exercise their freedom to express their views about collective bargaining. In these cases, the issue is whether the employer has crossed the line between its freedom of expression (provided for in section 70 of the Act) and the prohibition on direct bargaining. The Board described this issue in A.N. Shaw Restoration Ltd., [1978] OLRB Rep. May 393 at paragraph 18:

"The existence of this well established principle of exclusivity of bargaining rights means that employers must be circumspect when communicating with employees represented by a bargaining agent, especially when these communications occur during the course of negotiations. The need for circumspection on the part of employers, however, does not mean that all communications between employer and employees are prohibited. Section 56 of the Act, prohibiting employer interference with the formation, selection or administration of a trade union or the representation of employees by a trade union, expressly provides that this very general prohibition does not "deprive an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence". Where communications occur between employer and employees during negotiations, the Board must draw a line dividing legitimate freedom of expression from illegal encroachments upon the union's exclusive right to bargain on behalf of the employees. The line is not an easy one to find, and can only be discovered by asking whether such communications in reality represent an attempt to bargain directly with the employees. If employer communications can be characterized in this manner, they must be regarded as unduly influencing employees and, therefore, falling outside the protection provided to freedom of expression in section 56. Once outside this protected area, such communications can be characterized as a violation of section 59 of the Act, and also a violation of the duty to bargain in good faith if they serve to undermine the viability of the bargaining agent.

37. There are also cases where employers have attempted to agree on special terms of employ­ment with particular employees in specific situations (for example extensions of leaves of absence, severance packages or pay above a rate established in a collective agreement).

38. The circumstances of this case do not fall within these two traditional categories and to that extent are unusual. They do reflect as I have noted earlier, a particular trend in both private and public sectors where, entire industries are being rapidly but fundamentally restructured.

39. In this case, the respondent was faced with a pressing need to change its methods of operation. To accomplish this, it put in place a system for collecting reliable information about its current ways of doing things. Clearly, this was a sensible starting point. Any rational method designed to improve work processes must be based on an accurate and reliable "snapshot" of the work. The respondent decided that the best source of this information was its employees. This decision also seems reasonable. No one understands the practical ins and outs of the work process as it exists better than the people who perform the work.

40. Having determined where it would seek information, the respondent decided to collect it from employees in three ways, none of them unconventional. Of the three methods used, the applicant's concerns focused on only one - the questionnaire. More specifically, there were two concerns about the questionnaire. Firstly, that there were four questions which dealt directly with collective bargaining issues. Secondly, that employees understood they had no choice but to answer the questions.

41. The applicant's concern was not that employees were being given an opportunity generally to speak to the employer about collective bargaining matters. There is nothing which precludes an individual employee from discussing these types of issue directly with an employer if they choose to do so. It is quite another thing however for the employer to formally require such a discussion.

42. Formalized methods of communication between employer and employee in a unionized workplace will be appropriate or not to some extent, depending on the issues being discussed. It may for example be a breach of section 73(1) to require a response to a questionnaire which dealt directly with a collective bargaining issue, particularly if the parties are in the process of bargaining. It may alternatively be appropriate for an employer to ask employees generally "could anything be done differently?", or to have a "suggestion box" or an "new ideas" incentive program.

43. Here, there are three aspects of the process which assist in determining the issue. Firstly, there is the degree to which employees were required to address collective bargaining issues. The uncontradicted evidence on this point was from Mr. Babcock. He explained that he understood that he was being directed to complete and return the questionnaire. His participation was an "assignment" and not optional. Despite this direction he felt free to provide answers on particular questions which were unresponsive. He did this with questions that in his view, touched upon collective bargaining matters. I conclude from this and other evidence that employees understood that they were permitted to take the position on the questionnaire that some questions did not really have to be answered. Certainly, this was due in part to the advice of their bargaining agent. At the same time, the respondent did nothing to indicate that employees could not follow this advice. There were no explicit directions to employees which suggested the type of detail required in a response.

44. Secondly, there is the extent to which the four questions in issue necessarily focused on collective bargaining matters. It cannot be said that the questions in issue would require such answers. Certainly, answers could be given which would deal with collective bargaining matters, but not necessarily. Even the most directed questions such as questions 9 or 10 could be answered in ways that would not raise collective bargaining issues. The questions provided an opportunity for employees to comment on these types of issues, but not an obligation.

45. Thirdly, this was not a situation where an employer was putting forward a particular position for employees to respond to. The respondent was not asking for example, whether employees would prefer a particular form of scheduling, work assignment or system for dealing with job postings. To some extent, the term "bargaining" implies a putting forward of a suggestion to which the other side responds. There were no suggestions put forward here.

46. In circumstances where an employer questionnaire does not in fact require particular answers that must be directed to collective bargaining issues, and where no particular proposals are being put forward, it cannot be said that this is an attempt to bargain directly with employees. In my view, employers may increasingly and with justification look to their employees for reliable information about current work processes. This is permissible if it is done in a general way that does not necessarily target collective bargaining issues and permits employees to decline to respond if they feel that issues are more appropriately taken up with their bargaining agent. For these reasons the application with respect to section 73(1) was dismissed.

Interference-Section 70

47. Section 70 of the Act precludes an employer from conduct which will have the effect of interfering with a union's ability to administer itself or to act as exclusive bargaining agent. This type of provision is common in most Canadian jurisdictions (see section 94(l)(a) of the Canada Labour Code for example). In Canadian Labour Law, former Board Chair George Adams comments:

The general nature of this section blankets not only other more particular proscriptions against interference with employees' rights to join a trade union free from intimidation, coercion, discrimi­nation, threat of dismissal or other penalty for union membership but also other discriminatory employer activity which is not captured by the more specifically worded interdictions. As noted in the previous section, of particular importance is the absence of wording requiring an "intent" to interfere. Therefore, an employer's violation of one of the more specific sections requiring animus almost invariably contravenes as. 70-type provision but a violation of the latter arrived at by a non-motive analysis may not be a breach of the former. Complementary to the statutory provision against employer interference in trade union activity are other sections such as the bar against certification or the mandatory refusal to consider certain agreements as collective agreements if the employer has participated in the formation or administration of a trade union or has contributed financial or other support to it. Obviously, the censure of employer interference in trade union activity is one of the most useful and important provisions in Canadian labour statutes.

48. The scope of what is now section 70 of the Act was discussed in some detail by the Board in International Wallcoverings, [1983] OLRB Rep. Aug. 1316.

49. What becomes immediately apparent is the use in sections 66 and 70 of words suggesting a motive requirement whereas section 64 is expressed more in terms of effect. More specifically, section 66 uses the words "because", "seeks" and section 70 the word "seek". These words are not to be found in section 64. Instead, section 64 refers to interference. That section is also a very general one cast in terms, inter alia, of interference with the formation, selection or administration of a trade union. On the other hand. sections 66 and 70 are more particular in scope. aimed at particular kinds of improper action which impede or prevent persons from exercising rights under the Act. The result is that any conduct that violates sections 66 and 70 arguably will also offend section 64 but the opposite will not necessarily be so. For this reason, the inter-relationship and scope of these sections (principally sections 64 and 66) are absolutely critical. If section 64 does not require an "intent" to interfere and sections 66 and 70 do, complainants would be better off filing complaints only pursuant to section 64. The result would be, however, to read sections 66 and 70 out of the Act. This would be a dubious application of legislative intent. On the other hand, interpreting section 64 always to require motive gives little or no effect to the difference in language between the sections.

50. In International Wallcoverings, supra, the Board acknowledged the utility of having an unfair labour practice provision for which motive was irrelevant. At the same time the Board observed that all legitimate employer conduct which may "interfere" with a bargaining agent should not necessar­ily amount to an unfair labour practice. For example, where an employer dismisses an inside organizer and the Board finds that the dismissal is not tainted by an anti-union animus, it may very well be that the union's organizing efforts have been interfered with despite the fact that the dismissal is appropriate in the circumstances. These facts should not in every case amount to an unfair labour practice. If they did, then there would be no need for sections 72 and 76 of the Act.

51. The Board in that case, fashioned a test which attempted to balance these competing principles. The test requires a balancing as between the "business purposes behind the employer's conduct and the union's "protected activity" which may have been interfered with. In paragraph 32 of that decision, the Board described the type of employer conduct which would breach section 70:

…..cases arise where employer conduct has a significant impact on protected activity and, while supported by good faith, does not reflect a persuasive or worthy business purpose...

51. There are no decisions of the Board which have applied this test to fact situations comparable to the one here. By this I mean particularly, situations where employers directly solicit information concerning work processes from employees as part of a broad restructuring exercise. The parties referred by analogy to the following decisions of the Canada and the Alberta Labour Relations Boards: Canadian Broadcasting Corp. and C.U.PE. Broadcasting Division (1994) 27 C.L.R.B.R. (2d) 110; Staff Nurses Association of Alberta and University Hospitals Board, (1995) Alberta Labour Relations Board decision File No. GE-01662 (unreported). In both these cases, employers had begun restructuring exercises. The issue in dispute was whether a protocol designed to obtain information directly from employees concerning work processes amounted to interference with the union.

52. In University Hospitals, the respondent hospital commenced a project to redesign its patient care model. As in this case, the employer's initiative was driven in part by funding pressures. The stated goals of the redesign process there were similar to the ones here.

53. To begin its restructuring, the employer in that case initiated what it termed a "design phase". Part of the design phase included the creation of committees and teams consisting of a mix of management and bargaining unit employees. Through these teams and committees, there would be direct employee consultation to deal with various substantive issues.

54. At the outset of the design phase, the employer formally invited union participation in the process. The employer indicated that union involvement in "any level of the process is a possibility". The employer also committed itself to "parallel discussions" with the union dealing with any matters that were properly the subject of collective bargaining. In response, the union permitted its members to participate in the process but cautioned them to refer collective bargaining matters to it.

55. After the process was underway, the union at a certain point took the position that the employer was failing to bring collective bargaining issues arising out of employee consultations, to the parallel discussions. In response, the employer wished to continue to use the parallel discussions to deal with this new concern. The union did not agree and filed the unfair labour practice complaint.

56. In dismissing the union's application, the Alberta Board focused on three points. Firstly, that the issues being discussed in the "design phase" where quite preliminary to any real structural changes. Secondly, the employer had made a point of reminding all involved that the discussions were prelimi­nary and where collective bargaining issues arose, they would certainly be raised with the bargaining agent. Thirdly, while the employer had attempted to involve the union quite broadly from the outset of the process, the union withdrew at a certain point, past which the employer tried to carry on as best it could to keep the union advised as to the progress of the review. On this last point, the Alberta Board noted at page 13 of the decision:

…..There is no evidence the UAH was attempting to preclude SNAA from the Design Project. In fact, UAH attempted to involve SNAA, and other unions, in whatever ways SNAA chose to be involved.

57. In CBC, the employer decided to embark on a major restructuring exercise. As in the case before us, part of the reason for this was reduced levels of funding. The process started with the employer advising the union of its plans. The employer did not invite the union to participate to any degree in deciding how the process would be structured. The process established by the employer involved direct discussions with employees about issues that could touch upon collective bargaining matters. It was acknowledged that some of the possible suggestions which might result from these discussions could lead to proposals to amend the collective agreement between the parties. Following the initial presentation of the plan, the union raised concerns with the employer concerning its lack of participation in the process. The employer responded by assuring the union that it would be consulted at the end of the information gathering stage. Despite the union's expressed concerns, the employer proceeded with its planned process. In response, the union filed an unfair labour practice complaint.

58. In allowing the complaint, the Canada Board acknowledged that the type of planning and restructuring exercise that the employer was engaging in was becoming increasingly necessary in the current social and economic climate. Where the employer went wrong however was in failing to provide an opportunity for union involvement in the process. To this extent it was concluded that the employer's conduct had undermined the union's ability to represent its membership. This amounted to an act of interference contrary to the statutory provision comparable to section 70 of the Act (section 94 of the Canada Labour Code). The Canada Board noted at page 121:

Greater consultation and interaction between management and labour on workplace issues is not only desirable but, in the current social and economic milieu, becoming increasingly necessary. In order for labour and management to develop the constructive labour relations and collective bargaining practices which Parliament intended to support and foster by promulgating the Canada Labour Code, parties, such as the union and employer at CBC faced with the demanding circum­stances that presently exist, must adopt progressive and realistic industrial relations strategies —strategies that both acknowledge and the existing economic and competitive realities, as well as appreciate the necessary mutual interdependence of the union and employer in promoting and achieving the common well-being of both the employer's operation and the employees' working conditions to "ensure", in the words of Parliament. "a just share of the fruits of progress to all" (preamble of the Code).

In the prevailing circumstances at the CBC. it is understandable why the employer sought to establish a process that would facilitate the kind of broad-based employee involvement it hoped to achieve. However, in a union environment, the employer cannot institute an employee participation program — such as OFC was which focuses on areas that are directly the concern of the union in the collective agreement, or on the bargaining table, with out involving the union itself in the establishment and conduct of the process. To be successful, any consultative program to be implemented by the employer in a unionized workplace must involve the union in a meaningful way. To ensure that the consultative process established does not offend the provisions of the Code, the employer must ensure that its implementation does not serve to subvert, circumvent or replace the union in its legitimate role as exclusive bargaining agent, or. in the words of s. 94. otherwise interfere with the administration of the trade union or its representation of the employees.

59. Despite the differing results in these two cases, both acknowledge that an employer may legitimately seek information directly from employees as part of a restructuring exercise. There is also a recognition that unions are entitled to play a role in these types of planning processes. Both decisions attempt to determine whether the employer could get what it needed in a way that provided a role for the bargaining agent. While described differently, this analysis is comparable to the balancing of "protected activity" with "business purpose" in International Wallcoverings.

60. How were the competing interests of the parties balanced in this case? Firstly, there is the applicant's role in the process. The applicant was not provided with an opportunity to participate at any stage. The terms of reference were drafted and presented to the applicant as an accomplished fact. When it raised concerns about the process, the respondent provided no assurances that these would be considered or that decisions made which concerned the applicant would be reconsidered. Although the applicant was sent a copy of the draft call for proposals, it indicated to the respondent that it needed more than two days to respond. The respondent proceeded in any event. Finally, when the applicant asked to be able to attend an information session where its members would be in attendance, its request was pointedly denied.

61. The next area to consider is the subject matter of the questionnaire. While employees were probably not compelled to provide responsive answers to the questions of concern to the applicant, there is no doubt that the scope of those questions raised real concerns amongst bargaining unit members as to whether the respondent was asking for information which should come from the bargaining agent. It is also the case that the respondent was aware of this concern both from its initial meeting with the applicant and its meetings with those employees who had received the questionnaires.

62. What were the respondent's reasons for having excluded the applicant from the planning process? Mr. Watt explained that when the terms of reference were being drafted, no thought was given to union participation. No reasons were given for having denied the applicant's request to participate in the information sessions.

63. Finally, there is the broader context in which these events took place. Everyone in the university community seemed to know that one of the outcomes of the restructuring process was that jobs could be lost. This was understood notwithstanding assurances that the restructuring would take place initially on a very senior "macro" level. There were also the discussions leading to and the settlement of the earlier unfair labour practice complaint. The parties must be assumed to have understood that the issue of the applicant's role in a restructuring exercise was on the table. It had already been flagged for the respondent by the earlier application which was settled while the terms of reference for WGAR were being drafted.

64. In the circumstances, I find that the applicant's ability to represent its membership was interfered with and that this was done in the absence of any "persuasive or worthy" employer purpose, to use the words of International Wallcoverings (supra). The respondent should have permitted the applicant to play some role in the restructuring process. Accordingly, the respondent is found to be in breach of section 70 of the Act.

65. The applicant seeks by way of remedy a declaration and posting. Both are appropriate. The respondent is directed to post a copy of the "Notice" attached to this decision in a conspicuous place for a period of 60 days following the date of this decision.

Appendix

The Labour Relations Act, 1995

NOTICE TO EMPLOYEES

Posted by order of the Ontario Labour Relations Board

CARLETON UNIVERSITY HAS POSTED THIS NOTICE IN COMPLIANCE WITH AN ORDER OF THE ONTARIO LABOUR RELATIONS BOARD ISSUED AFTER A HEARING IN WHICH THE UNION AND THE COMPANY HAD THE OPPORTUNITY TO PRESENT EVIDENCE. THE ONTARIO LABOUR RELATIONS BOARD HAS DETERMINED THAT CARLETON UNIVERSITY VIOLATED SECTION 70 OF THE ONTARIO LABOUR RELATIONS ACT 1995, AS A RESULT. THE BOARD HAS ORDERED US TO INFORM YOU OF YOUR RIGHTS:

THE LABOUR RELATIONS ACT, 1995 GIVES ALL

EMPLOYEES THESE RIGHTS:

TO ORGANIZE THEMSELVES;

TO FORM. JOIN AND PARTICIPATE IN THE

LAWFUL ACTIVITIES OF A TRADE UNION;

TO ACT TOGETHER FOR COLLECTIVE BARGAINING;

TO REFUSE TO DO ANY AND ALL OF THESE

THINGS.

WE ASSURE ALL OF YOU THAT:

WE WILL NOT IN ANY OTHER MANNER INTERFERE

WITH OUR EMPLOYEES OR THEIR TRADE UNION IN

THE EXERCISE OF THEIR RIGHTS UNDER THE ACT.

WE WILL COMPLY WITH ALL DIRECTIONS OF THE

ONTARIO LABOUR RELATIONS BOARD.

CARLETON UNIVERSITY

PER _____________________________________

(AUTHORIZED REPRESENTATIVE)

This is an official notice of the Board and must not be removed or defaced.

This notice must remain posted for t0 consecutive days

DATED this 29th day of January, 1998.